Arizona AG Argues that States May Take Military Action at Border

Arizona Attorney General and U.S. Senate candidate Mark Brnovich issued a legal opinion arguing that Arizona Gov. Doug Ducey would be constitutionally permitted to use military force to stop an ongoing "invasion" at the U.S. border, the Intercept reports. The Feb. 7 opinion says “The State Self-Defense Clause of the Constitution establishes that States in our federal system retain the sovereign power to ‘engage in War’ when ‘actually invaded,’ and States do not require the ‘Consent of Congress’ to do so." It goes on to claim that “Arizona therefore has the power to defend itself from this invasion under the Governor’s authority as Commander-in-Chief. An actual invasion permits the State to engage in defensive actions within its own territory at or near its border.” Local and national commentators derided the opinion's legal reasoning The opinion was formally solicited by Arizona Rep. Jack Hoffman, who claimed that President Biden is overseeing a "coordinated crisis" on the border with the "assistance of Mexican drug cartels."

Many suspect that Ken Cuccinelli, deputy secretary of Homeland Security under President Trump, was behind Hoffman's request. Cuccinelli has been pushing the invasion theory for more than a decade and told Steve Bannon last month that he has been trying to convince Ducey and Texas Gov, Greg Abbott of his idea for two years. Abbott seems to have embraced Cuccinelli's idea at least in part through "Operation Lone Star," an effort of 10,000 state troopers and National Guard soldiers that sought to arrest undocumented migrants on state criminal trespass charges. That program was ruled unconstitutional by a Texas judge last month. While Ducey has deployed some Guardsmen to the border, he has yet to mobilize on such a scale as Texas and he does not appear likely to change course. When asked about Brnovich's opinion, Ducey dodged the question. Activist groups argue that increases in illegal border crossings should be chalked up to U.S. policies that make it more difficult to seek asylum at a port of entry.